Proposed Amendment to the Criminal Law Consolidation Act 1935 - Essay Example

PROPOSED AMENDMENT TO THE CRIMINAL LAW CONSOLIDATION ACT 1935 (SA) STUDENT NAME PROFESSOR’S NAME COURSE TITLE DATE A MEMORANDUM OF ADVICE To: THE ATTORNEY GENERAL OF SOUTH AUSTRALIA FROM THE ADVISOR TO THE ATTORNEY GENERAL REF: WHETHER TO ENACT THE AMMENDMENT TO SECTION 5AA OF THE CRIMINAL CONSOLIDATION ACT 1935 (SA), AMEND OR REFUSE ENACTMENT Introduction It is my humble opinion that the Attorney General enacts the Criminal Law Consolidation (CLC) Act 1935 (SA), however there are certain areas of the amendment that need re-amending and addition of certain clauses to consolidate the acts application. This submission discusses the proposed amendment of 5AA of CLC Act in relation to interpretation of the courts, parliament’s intention and the enforceability of the Act. It also discusses United Kingdom (UK) definition of racially aggravated offence and judicial jurisprudence to give a persuasive aspect to the proposed amendment. Justification of Racial Aggravation as an Offence Criminal law represents the wishes of a people ‘social, political, and cultural perspectives on how to deal with certain offences or perceived crimes’1. The main of the existence of a criminal justice system is to punish criminal offenders, retribution, deter and rehabilitate an offender. In the case of Proprietary Articles Trade Association v Attorney General 2 Lord Atkin stated that ‘criminal jurisprudence dictates that once a state declares an act to be crime, then it becomes immediately prohibited and anyone who fails to abide by the law will be punished’3. In the announcement by the Premier, he declares that currently, racism cannot flourish, in the corners of the society, streets or prison, in provision of services, workplace, and clubs since this is an evil. There is acceptance by society that racism has attained the status of a ‘serious crime’ and that the gravity of the offence is demonstrable by the infliction of sentences that convey a message clearly. There is an inherent wrongness and moral underpinnings that racial discrimination is unjustifiable especially due to the ridicule and insult as one of the outcomes of racial remarks. A law that deters racial vilification punishes those offenders whose conduct is to inflict harm , usually something blamed on the state of mind of an individual. The intention of parliament is to protect victims of racially motivated crimes. Proposal to what should be the elements of the Offence In reference to section 5AA (1) of the CLC Act, an offence is racially segregated if it meets the following threshold; (a) at the time of committing the offence, or immediately before or after doing so, the offender demonstrates towards the victim of the offence hostility based on the victim’s membership (or presumed membership) of a racial group; or (b) The offence is motivated (wholly or partly) by hostility towards members of a racial group based on their membership of that group. In the proposed amendment, the elements of the aggravating future of the offence are; Actus rea That at the time or during the commission of the offence or after committing the crime an offender demonstrates towards the victim an act of hostility Mens rea In reference to the fault element, an offender intentionally expresses hostility based on the victims association or membership with a given racial group. On the other hand, the offence of aggravation relates to having been motivated towards membership of a racial group. In consonance with the interpretation of UK OF section 28(1) of CDA 1998 that is there must be a clear demonstration of hostility informed by the injured party’s racial group or through a racist motivation of the offender. In proving whether a racially aggravated offence is committed, the accused person must make the hostility towards the victim evident and that the victim comprehends their confrontation with racism4. In the definition of demonstrate ‘ to make evident by arguments or reasoning’5 . The failure of the victim failing to have the necessary capacity to understand the nature of the words uttered by the accused, or the failure to demonstrate express hostility, then an offender might avoid prosecution. The inclusion of ‘demonstrate ‘ as opposed to ‘express’ that eliminates the condition that the victim must be duly aware of the racial intention behind the hostile utterances6. The aim of enacting section 5AA of the CLC Act 1935 is to effectively deal with and deter behaviour ion is whose sole intention is to provoke racial enmity or animosity or a racist kind of harassment. In my opinion, this kind of legislation might go against international law treaty obligation treaty that protects the right of freedom expression. The amendment fails to enumerate the limits of freedom of expression and there is no set threshold of what kind of statements fall within the scope of racially aggravated offence7. In one notable case Eatock v Bolt8 the court held that in Australia there is a significant constraint to the freedom of expression9. Section 5AA ( 4) defines a “racial group” as a group of persons defined by reference to race, colour, nationality (including citizenship) or ethnic or national origin. The most common definition of ‘hostility’ is the unfriendliness between two people. In a legislative perspective, hostility is a more severe than unfriendliness. In the interpretation of the court, hostility surpasses unfriendliness such that the penalty for hostility represents an offence10. The definition mirrors that given by section 28(4) of the Crime and Disorder (CDA) Act 1998. In the decision of the House of Lords in R v Rodgers11 the appellant had not called the victims “bloody Spaniards” but “bloody foreigners” the counsel argued that the hostility was not towards a particular group but to foreigners as a whole amounting to xenophobia not same as hostility. In reference to Ivan Hare’s Article ‘Legislating against Hate-The Legal Response to Bias Crimes’12 he stated that there is justification why racially or religiously aggravated crimes are more severe than basic version s ‘of qualitatively distinct order of gravity. What then is the Intention of Parliament Intention? In agreeing with the Premier’s sentiments on the amendment to section 5AA of the CCA Act 1936 is that it has the ability to deal with racism within the society, creating an impression that it would act both retrospectively and retroactively to deter the commission of racial crimes13. The amendment adoption should be implemented pursuant to adding other groups of people who might be protected by the section such as; asylum seekers, immigrants and other groups whom a racially or religiously isolated14. The non-inclusion of religious groups brings into question of whether racial aggravated offences interpreted to include religious offences even though precedents set by UK Courts shows that the offence applies to religious groups. Including it within section 5AA will leave no room for misinterpretation and it will create an intention that parliament wanted it to extend to religiously aggravated offence. In consonance to the interpretation of the CDA 1998, the UK in Mandla V Dowell Lee15 that included Jews and Sikhs as a racial group, and in R v Rogers16 the issue of inclusion of national origin and citizenship within the definition of racial group. Similarly in Yick Wo v Hopkins17, the United States decided to include within the definition of racial immigrants both legal and illegal with an extended right of equality without prejudice. The definition can also extend to refugees and asylum seekers especially those living in Southern Australia18. There has also been suggestions that maybe perhaps, ‘extraterrestrials’ be included within the definition of racial groups19 even though extraterrestrials fall within the category of myths and fictitious beings. This spurns from the decision in Jolly v Pelletier 20 that a plaintiff who is allegedly not human, he is not a person and having no legal rights. The inclusion of specific racial groups will be important in the removal of ambiguities of who section 5AA of CLC Act accords protection. The SA parliament should adopt an amendment that states higher penalties for a racially aggravated offence compared to similar offence and that racially aggravated crimes treated more seriously than other base offences21. Persuasive nature of UK Law In practice the applicability of UK law in Australia is no longer relevant however, UK Law gives a persuasive approach to interpretation of Australian law. The Amendment to section 5AA of CLC Act mirrors word-by-word section 28 (1) of the CDA. In applying a definition to what was, the intention of section 28(1) the courts have depended on Parliamentary definition 22 and focused in the individual aspect in case of racially motivated crime. According to Austin Walters23 there is a confusion of interpreting section 28(1)(a) which proscribes ‘demonstrations’ of hostility and that of section 28 (1) which proscribes ‘motivated’ by hostility as an offence24. This has led to reluctance by the courts to apply section 28(1) (a) in cases where there is a demonstration of hostility that appears to be incidental as against casual to the offence committed. A leading case in the UK in the definition of racial groups is that of Mandla v Dowell Lee25 where the question to be determined was whether refusing a Sikh to wear his turban constituted racial discrimination. In the ruling, the House of Lords stated that even though Sikhism is a religion, regarded as a distinct racial group. According to Lord Fraser in the Mandla case he stated that it is possible to fall within a particular group either by birth. Adherence and it matters not how one made their way into that particular group26. In English cases, the approach by the courts were that the mere mention of racist remarks were enough to hold a person liable under section 28 (1) (a) of the CDA 1998 an equivalent of section 5AA(3)27 . In my opinion, the extent to which the judicial courts interpret the wordings of section 5AA of CLC Act 1935 should adhere to the express intention of Parliament. This is in accordance with the doctrine of separation of powers that the judiciary interprets the law while Parliament enacts legislation28. Potential Critic to the Amendment In states, such as Western Australia already assented to the legislation there is a notion that the provision is redundant29. This is because some states decide to prosecute the criminal offence of racial aggression as other crimes since there are few cases reported relating to racial aggravation. The other aspect of the applicability of the amendment is in relation to the plethora or vast legislation that defines and deters crime if the same effect – punishment is achievable through other means. In many instances, the courts have decided to classify the offence of racial aggression as racial vilification when applying certain laws and provisions. There is a distinction that racial aggravated offences meant dealing with ‘a severe form of abuse and not petty issues of name-calling.’30 Conclusion The amendment to the Act in SA is appropriates both in relation to legal and policy concerns. There are however multiple areas of improvement such as increasing the scope of the definition of racial groups. This is to eliminate ambiguities and highlight the appropriate intention of parliament. The amendment needs to accommodate a broad definition of what is ‘racism’ in relation to what is motivated racism and demonstrable elements of the offence. The Act also demonstrates the non-tolerance of society of racial crimes that the legislations show steps by SA to eliminate hate crimes. REFERENCES a) Books/Articles/Reports Austin, W A ‘Conceptualizing ‘Hostility’ for Hate Crime Law: Minding ‘the minutiae’ when interpreting section 28(1)(a) of the Crime an Disorder Act 1998 (2013) 33 (3) Oxford Journal of Legal Studies 33(3) Crown Prosecution Service, Racist and religious crime: CPS guidance, The Crown Prosecution Service Delbridge A, Et al, The Macquarie Dictionary Revised Edition ( Macquarie Library Pty Ltd, Australia,1985) 621. Human Rights and Equal Opportunity Commission, “Racist Violence: Report of the National Inquiry into Racist Violence in Australia” (1991) Gail Mason, ‘Hate crime laws in Australia: Are they achieving their goals?’ (Sentencing Conference 2010, Canberra, 6 & 7 February 2010), 1 Ian Ward, Introduction to Critical Legal Theory (Routledge Cavendish, 2nd ed, 2004) 43 Ivan, H ‘Legislating Against Hate-The Legal Response to Bias Crimes’ ( 1997) 17 Oxford Journal of Legal Studies’ 425, 416-417 Mason, B, “From Shamans to Shaming: A History of Criminological Though” in K Hazlehurst (ed), Crime and Justice (Law Book Company, Sydney, 1996) 6. Natascha Klocker, ‘Community Antagonism Towards Asylum Seekers in Port Augusta, South Australia’ (2004) 1 Institute of Australian Geographers, 1 Packer, H , The Limits of the Criminal Sanction, (Stanford University Press, Stanford. 1968) 364 Robert A. Freitas Jr., "The Legal Rights of Extraterrestrials," (1977) Analog Science Fiction/Science Fact 97 54 – 67. b) Cases DPP v Mc Farlene (2002) EWHC 485 DPP v Woods (2002) EWHC 85 Eatock v Bolt [2011] FCA Glimmerveen and Hagenbeek v Netherlands [1987] 18 DR Jolly v Pelletier [1999] OJ No 1728 Kuhnen v Germany [1988] 56 DR Mandla v Dowell Lee [1983] 2 AC 548 Proprietary Articles Trade Association v Attorney General [1931] AC 310, 324 R v Kestell [2013] SASCFC 55 R v Rogers [2007] UKHL 8, [2007] 2 All ER 433 Yick Wo v Hopkins 118 U.S 356 (1986) Read More